United States: Graffiti On The Runway: Street Artist Rime Pursues Lawsuit Against Moschino For Damaging His Street Cred

The fusion of street art, high fashion, and the law is hardly
new, but the Italian designer Moschino's latest foray into this
genre has landed the company in court. Joseph Tierney, a well known
graffiti artist who works under the pseudonym "Rime",
filed a complaint against Moschino and its creative director,
Jeremy Scott, alleging copyright infringement, trademark violations
under the Lanham Act, and unfair competition, and appropriation of
name and likeness under California law. Moschino's
allegedly unauthorized use of his work has harmed the artist in
numerous ways, Tierney alleges, not the least by opening him up to
accusations of selling out. In the words of Tierney's
complaint: "nothing is more antithetical to the outsider
'street cred' that is essential to graffiti artists than
association with European chic, luxury and glamour – of which
Moschino is the epitome." This theory of harm was
something we talked about at the "
Copyrights on the Street" panel at the Copyright Society
of the USA meeting in Newport this year, and it is now being put to
the test.

The suit,
filed last August in the U.S. District Court for the Central
District of California, arises out of Jeremy Scott's use of
Rime's 2012 Detroit mural "Vandal Eyes" (image #1,
all from the Complaint) in his Fall/Winter 2015 collection. The
dress bearing Rime's mural was featured in Moschino's
February 2015 runway show in Milan – it was worn by
supermodel Gigi Hadid to close out the show (image #2). Then in May
2015, the dress was worn by Katy Perry at the Met Gala (image #3),
where Jeremy Scott himself also wore the design (image #4).
The collection featuring Rime's work has generated a lot of
publicity and is said to have earned Moschino a substantial boost
in revenues, according to articles in TheNew York
Times and The Wall Street Journal.

Not only did Moschino and Scott copy the mural, but they also
– "to add insult to injury" as the complaint puts
it – included a forgery of Rime's signature and his name
through the designs in the collection. In addition, the
artist's image was embellished with Moschino brand logos,
Tierney says. These embellishments constitute defacement,
according to the artist, and amount to a false representation that
the artwork was created by Moschino and/or Scott, not
Rime—and thus constitute an alteration of copyright
management information in violation of 17 U.S.C. § 1202.
This theory about graffiti signatures and copyright management
information is also in play in
the Cavalli case.

Tierney further claims that Moschino violated the Lanham Act and
creates a likelihood of confusion with Tierney's work and/or
authorization. By creating the impression that Rime was the author
of the designs, Tierney alleges that Moschino undermined decades of
efforts by the artist to establish 'his name and signature in
the minds of consumers as associated with high quality
artwork." Part of Rime's reputation, he argues, is
founded on "eschewing connections to commercial consumerism
except in carefully selected instances." An association
with Moschino poses a significant threat to carefully crafted
reputation.

Moschino and
Scott have now responded by filing separate (but largely
overlapping) motions to dismiss and motions to strike the state law
causes of action. The argument underlying the motions to
strike is three-fold, in accordance with the anti-SLAPP statute
that seeks to prevent lawsuits filed to silence a defendant's
exercise of free speech on a matter of public interest.

First, the defendants argue that Scott, as the creative director
for Moschino, is above all an artist who uses the medium of fashion
design in order to express his creativity (these ideas are detailed
in a declaration by the designer, which the Hollywood Reporter calls an "eyebrow
raiser"). In fact, Scott appears as eager to
claim the title of subversive artist as Tierney. For example,
the motion argues that Scott's use of graffiti in fashion
design is a form of (feminist) social commentary "on the way
in which society objectifies women." As such, the
designs are a form of artistic expression protected by the First
Amendment, not simply a way to sell clothes (in fact, the
defendants deny that the fashion items in dispute were ever sold in
the United States or even featured at a fashion show or other
public event in this country).

Second, Moschino and Scott contend that fashion is a matter of
public interest. Citing a number of cases that construe the concept
of "public interest" broadly for purposes of the
anti-SLAPP statute, the defendants claim that "[f]or better or
worse, in our society, the fashion decisions of major celebrities
at a major annual gala that receives tremendous press attention is
indisputable a matter of public interest." This second
argument seems to cloud the first one to some degree – what
is presumably at issue here is not simply the fashion choice of
celebrities but rather Mr. Scott's fashion design as social
commentary.

In addition, SLAPP statutes are founded largely in justifiable
concerns about free expression, and are intended to curtail
lawsuits that intimidate things like free speech and petitioning
the government. But all copyright restrictions are a check on
unlimited expression, but that is not a Constitutional problem
because copyright law is authorized by the Constitution
itself. It's dubious that pursuing infringement claims
can be characterized in this way without allegation or evidence of
some ulterior motive.

Scott's individual motion to dismiss argues that the
copyright infringement claim fails because Tierney has not provided
anything more than "threadbare allegations" that Scott is
responsible for actual copying of his mural onto Moschino's
apparel.

The two defendants argue together that the CMI theory is
misplaced, and was intended to apply to digital information, not
physical attribution. Section 1202 was indeed enacted as part of
the Digital Millennium Copyright Act, but there is a split of
authority on whether CMI has to be digital.

With a hearing on the motion to dismiss scheduled for December
21, we may soon see which of the Tierney's claims withstand the
defendants' response.

My thanks to my colleague
Maria Granik for her considerable assistance in drafting this
article.

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